Tio Dinero SESSOMS, Petitioner Appellant, v. Randy GROUNDS, Warden, Respondent Appellee. No

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1 SESSOMS v. GROUNDS Cite as 776 F.3d 615 (9th Cir. 2015) 615 but not the alleged wrongs, which were the same before and during the policy period. See 101 Cal.Rptr.3d at 547. The difference in products is therefore also not material for purposes of the fresh wrongs analysis. Accordingly, we conclude that Street Surfing s postcoverage advertisements are not fresh wrongs that escape application of the prior publication exclusion. 10 CONCLUSION At its core, this case involves a company that began a wrongful course of conduct, obtained insurance coverage, continued its course of conduct, then sought a defense from its insurer when the injured party sued. Although a liability insurer owes a broad duty to defend its insured against claims that create a potential for indemnity, Horace Mann Ins. Co. v. Barbara B., 4 Cal.4th 1076, 17 Cal.Rptr.2d 210, 846 P.2d 792, 795 (1993), the prior publication exclusion, strictly construed, serves to place reasonable limits on that broad duty. We therefore affirm the district court s grant of summary judgment in favor of Great American. We do not reach Great American s alternate arguments based on the IP exclusion and the AI amendment. AFFIRMED., 10. Street Surfing s additional contention that it began using Street Surfing as a slogan only after coverage began is not convincing, Tio Dinero SESSOMS, Petitioner Appellant, v. Randy GROUNDS, Warden, Respondent Appellee. No United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc March 18, Filed Sept. 22, Amended Jan. 23, Background: Following affirmance of a defendant s conviction for murder, robbery, and burglary, 2004 WL 49720, the defendant sought federal habeas relief. The United States District Court for the Eastern District of California, John A. Mendez, J., 2008 WL , denied relief. The defendant appealed. The Court of Appeals, 650 F.3d 1276, affirmed. On rehearing en banc, the Court of Appeals, 691 F.3d 1054, reversed. The United States Supreme Court, U.S., 133 S.Ct. 2886, 186 L.Ed.2d 930, granted certiorari and vacated. Holding: On remand, the Court of Appeals, en banc, McKeown, Circuit Judge, held that the defendant clearly and unambiguously requested a lawyer during his interrogation. Reversed and remanded. Kozinski, Chief Judge, filed a dissenting opinion. Callahan, Circuit Judge, filed a dissenting opinion. Murguia, Circuit Judge, filed a dissenting opinion, which was joined by Kozinski, because there is no potential coverage under the slogan infringement provision. See supra Part A.

2 FEDERAL REPORTER, 3d SERIES Chief Judge, and Silverman, Callahan, and Ikuta, Circuit Judges. Opinion, 768 F.3d 882, amended and superseded on denial of rehearing. 1. Criminal Law O393(1) The Fifth Amendment privilege protects persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. U.S.C.A. Const.Amend Criminal Law O Mere silence does not qualify as an invocation of the right to remain silent. U.S.C.A. Const.Amend Criminal Law O A defendant clearly and unambiguously requested an attorney during his interrogation when the defendant asked if there wouldn t be any possible way that I could have a lawyer present while we do this and stated that s what my dad asked me to ask you guys, [to] give me a lawyer, and thus police officers violated Miranda when the officers continued to interrogate the defendant, even though the defendant subsequently waived his Miranda rights; any ambiguity in the defendant s first statement was resolved by the clear statement give me a lawyer. U.S.C.A. Const. Amend Courts O96(7) Habeas Corpus O450.1, 452 A circuit court may not consult its own precedents, rather than those of the Supreme Court, in assessing a habeas claim brought by a prisoner in state custody. 28 U.S.C.A Criminal Law O Requests for counsel are to be understood as ordinary people would understand them. 6. Criminal Law O Harmless error review applies to the introduction of an illegally obtained confession. 7. Criminal Law O1165(1) Under harmless error review, reversal is required if a constitutional error had substantial and injurious effect or influence in determining the jury s verdict. 8. Criminal Law O1165(1) If, reviewing the facts as a whole, the Court of Appeals is able to determine with fair assurance that the judgment was not substantially swayed by a constitutional error, it may conclude that the error was harmless; otherwise, the Court of Appeals must conclude that the petitioner s rights were substantially and injuriously affected. 9. Criminal Law O Admission into evidence of defendant s illegally obtained confession was not harmless in prosecution for felony murder, burglary, and robbery; in statements defendant made to police after invoking his right to counsel, he readily implicated himself in the crime, admitting that he knew about the planned robbery beforehand and was an active participant in carrying it out, prosecutor emphasized the statement during closing argument, and other evidence against defendant was circumstantial and provided, at best, limited proof that defendant actually participated in the robbery. U.S.C.A. Const.Amend. 6. Eric Weaver (argued), Albany, CA, for Petitioner Appellant. Jeffrey Firestone (argued), Deputy Attorney General; Kamala D. Harris, Attorney General of California; Michael P. Farrell, Senior Assistant Attorney General;

3 SESSOMS v. GROUNDS Cite as 776 F.3d 615 (9th Cir. 2015) 617 and Charles A. French, Supervising Deputy Attorney General, Sacramento, CA, for Respondent Appellee. Peter C. Pfaffenroth, HL Rogers and Brian A. Fox, Sidley Austin LLP, Washington, D.C.; Mark E. Haddad and Douglas A. Axel, Sidley Austin LLP, Los Angeles, CA; and David M. Porter, Office of the Federal Defender, Sacramento, CA, for Amicus Curiae National Association of Criminal Defense Lawyers. On Remand from the United States Supreme Court. D.C. No. 2:05 cv JAM GGH. Before: ALEX KOZINSKI, Chief Judge, and MARY M. SCHROEDER, BARRY G. SILVERMAN, M. MARGARET McKEOWN,* KIM McLANE WARDLAW, RAYMOND C. FISHER, RICHARD A. PAEZ, CONSUELO M. CALLAHAN, MILAN D. SMITH, JR., SANDRA S. IKUTA and MARY H. MURGUIA, Circuit Judges. Order; Opinion by Judge McKEOWN; Dissent by Chief Judge KOZINSKI; Dissent by Judge CALLAHAN; Dissent by Judge MURGUIA. ORDER The opinion filed on September 22, 2014, is amended. The amended opinion is filed concurrently with this order. With these amendments, the panel has voted to deny the petition for rehearing. The petition for rehearing is DENIED. No further petitions for rehearing or rehearing en banc will be entertained. * Judge McKeown was drawn to replace Judge B. Fletcher following her death shortly after the initial en banc decision. 1. This quotation is often attributed to James Witcomb Riley, an American poet. Max Cryer, Who Said That First? The Curious OPINION Opinion by McKEOWN, Circuit Judge, joined by SCHROEDER, WARDLAW, FISHER, PAEZ and M. SMITH, Circuit Judges: An American poet wrote more than 100 years ago: When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck. 1 When a suspect says give me a lawyer, that request walks, swims, and quacks like a duck. It is an unambiguous request for a lawyer, no matter how you slice it. The statement is unequivocal it is not a maybe or a perhaps it is an invocation of the Fifth Amendment right to counsel. In late 1999, a naive and relatively uneducated nineteen-year-old Tio Sessoms sat alone in an eight-by-ten foot interrogation room. Four days earlier, on the advice of his father, Sessoms had turned himself in to the police. Before doing so, Sessoms s father told his son: you must ask for a lawyer before talking to the police. Sessoms followed his father s advice. When the two police detectives entered the interrogation room, Sessoms sat slouched in his chair. He looked up, and they exchanged brief pleasantries. Sessoms was unfailingly polite, even saying he was glad the detectives had a safe flight. Forty seconds after the detectives entered the room, the following exchange occurred: Sessoms: There wouldn t be any possible way that I could have a a lawyer present while we do this? Origins of Common Words and Phrases 139 (2001); see In re Fletcher, 489 B.R. 224, 235 & n. 36 (Bankr.N.D.Okla.2013). It has also been attributed to Walter Reuther. Hugh Rawson and Margaret Miner, The Oxford Dictionary of American Quotations 237 (2006).

4 FEDERAL REPORTER, 3d SERIES Det. Woods: Well, uh, what I ll do is, um Sessoms: Yeah, that s what my dad asked me to ask you guys TTT uh, give me a lawyer. 2 Instead of immediately ceasing the interrogation, the detectives carried on, convinced Sessoms that his accomplices had already told them what had happened, and impressed upon Sessoms that the only way to tell his side of the story was to speak to the officers then and there, without an attorney. Only after talking with him, softening him up, and warning him about the various risks of speaking with counsel did the detectives read Sessoms his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Unsurprisingly, Sessoms agreed to talk and made incriminating statements. Sessoms was convicted of murder, robbery, and burglary, and sentenced to life without the possibility of parole. We consider his habeas appeal under the demanding but not insatiable standard of the Antiterrorism and Effective Death Penalty Act of 1996 ( AEDPA ). See Miller El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). The California Court of Appeal concluded that Sessoms s request was not an unequivocal or unambiguous request for an attorney as required under Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). Because this conclusion was an unreasonable application of Supreme Court precedent as it existed at the time of the Court of Appeal s determination, we 2. The transcript of the colloquy says give me a lawyer, but, after comparing the transcript to the videotape, Detective Woods testified that Sessoms said [g]et me a lawyer. This minor distinction is not material to our analysis. 3. Sessoms s statements to himself were made prior to the detectives entering the room, and reverse the district court s denial of the petition for a writ of habeas corpus and remand with instructions to grant a conditional writ of habeas corpus with directions that the State retry Sessoms within a reasonable period or release him. See 28 U.S.C. 2254(d)(1). BACKGROUND AND PROCEDURAL HISTORY I. THE INTERROGATION On October 20, 1999, Sessoms and two others burglarized Edward Sheriff s home in Sacramento, California. During the burglary, one of Sessoms s accomplices repeatedly stabbed Sheriff, resulting in Sheriff s death. Sessoms then fled from California to Oklahoma. When he became aware that there was a warrant out for his arrest, and after having discussed the situation with his father, Sessoms surrendered to Oklahoma police on November 15, His father advised him to ask for a lawyer before talking to the police. Two detectives, Woods and Keller, flew from California to Oklahoma to question Sessoms on November 20, 1999, at the county jail where he was being held. Sessoms was in custody for at least four days before he was interrogated. Before the officers entered the interrogation room, Sessoms sat alone, and quietly said to himself, I m not a criminaltttt They didn t tell me if I have a lawyer. I know I want to talk to my lawyer now. 3 When the detectives entered the room, the following exchange took place: there is no evidence that the detectives heard these statements. We, therefore, do not rely on these statements as part of the context relevant to whether a reasonable law enforcement officer would have understood Sessoms s statements as unambiguous requests for counsel.

5 SESSOMS v. GROUNDS Cite as 776 F.3d 615 (9th Cir. 2015) 619 Det. Woods: TTT Tio, I m Dick. Sessoms: How you doing, all right. You already know me. Det. Woods: You say Det. Keller: Tio, Pat Keller. Det. Woods:You say Tio or Theo? Sessoms: It my name is pronounced Tio because it s [S]panish. Det. Woods: Tio. Okay. Det. Keller: Why don t we swap corners here for a minute, you guys? Go ahead and sit here. Sessoms: So glad you fellows had a safe flight. Det. Woods: Huh? Sessoms: I m glad you fellows had a safe flight out here. Det. Keller: So are we. Huh. Det. Woods: Well, we want a safe one back too. Sessoms: Oh, you know ( [i]naudible). Det. Woods: Yeah. Uh, we both, uh both from, uh, Sacramento PD and, uh Sessoms: There wouldn t be any possible way that I could have a a lawyer present while we do this? Det. Woods: Well, uh, what I ll do is, um Sessoms: Yeah, that s what my dad asked me to ask you guys TTT uh, give me a lawyer. Woods proceeded as though Sessoms had said nothing. Instead of ending the interrogation, Woods persuaded Sessoms that having a lawyer was a bad idea. Sessoms explained that he was concerned that some police officers end up switching your words afterwards, to which Woods responded that he had no intention of playing any switch games. Woods even produced a tape recorder to allay Sessoms s fears. As it turns out, the session was videotaped from the outset. Woods then explained the situation: Sessoms and two accomplices were all being charged with the same thing. Woods said he already knew what happened because the accomplices had waived their rights and laid it out from A to Z. Woods reassured Sessoms that he believed that Sessoms did not participate in the stabbing, but warned that if Sessoms didn t make a statement right then and there, Woods wasn t going to be able to get his version of it because most all attorneys in fact, all attorneys will will sometimes or usually advise you not to make a statement. Woods said he didn t really need [Sessoms s] statement to make [the] case anyway because he already [had] two and a half other complete statements, reiterating that he already [knew] what happened and had the hard evidence to back it up. Only then after telling Sessoms that having a lawyer would only hurt him and that invoking his right to counsel would be futile because the police already knew what had happened did Woods read Sessoms his rights under Miranda. Sessoms hesitated, shrugged his shoulders, and said, [l]et s talk, proceeding to implicate himself in the crime. II. PROCEEDINGS IN THE CALIFORNIA COURTS Before trial, Sessoms moved to suppress the incriminating statements arguing that they were obtained in violation of Miranda because he had clearly and unequivocally invoked his right to counsel. The trial court denied the motion. Sessoms went to trial and was convicted of first-degree murder, robbery, and burglary, with the special circumstance that he was engaged in the commission or attempted commission of the crimes of robbery and burglary when the murder occurred. At the conclusion of the trial, Sessoms moved for a new trial based upon prejudicial Miranda er-

6 FEDERAL REPORTER, 3d SERIES ror, renewing the objections he had made in his pretrial motion. The trial court denied the motion. Sessoms was sentenced principally to life in prison without the possibility of parole. Sessoms appealed to the California Court of Appeal, which determined that Sessoms s statements did not qualify as an invocation of the right to counsel under Davis, 512 U.S. 452, 114 S.Ct It found that although [Sessoms] twice explicitly referred to an attorney, neither statement was an unequivocal or unambiguous request for counsel. People v. Sessoms, No. C041139, 2004 WL 49720, at *3 (Cal.Ct.App. Jan. 12, 2004). According to the Court of Appeal, Sessoms s first statement was legally indistinguishable from the statements made in Davis, 512 U.S. at 455, 114 S.Ct ( Maybe I should talk to a lawyer ) and People v. Crittenden, 9 Cal.4th 83, , 36 Cal.Rptr.2d 474, 885 P.2d 887 (1994) ( Did you say I could have a lawyer? ), which were not unequivocal requests for an attorney. Id. Sessoms s second statement, the court continued, was also not an unequivocal request for an attorney, but [a]t best TTT a statement of his father s advice to him. Id. Ultimately, the Court of Appeal concluded that Sessoms s statements were not sufficiently clear[ ] that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Id. (quoting Davis, 512 U.S. at 459, 114 S.Ct. 2350) (alteration in original) (internal quotation marks omitted). 4. The California Court of Appeal s opinion is the last reasoned opinion in this matter for purposes of AEDPA. Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); see Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir.2005). III. PROCEEDINGS IN THE FEDERAL COURTS After exhausting his state court remedies, Sessoms filed a federal habeas petition, arguing primarily that he had invoked his right to counsel. A magistrate judge recommended denying the petition. The district court adopted the magistrate judge s findings and recommendations and denied the petition, but granted a certificate of appealability on the Miranda and ineffective assistance of counsel claims. 5 A divided three-judge panel of this court upheld the district court s denial of Sessoms s habeas petition. Sessoms v. Runnels, 650 F.3d 1276, 1283 (9th Cir.2011). The majority held that [b]ecause Sessoms s statements were made prior to his Miranda waiver, Davis cannot apply as clearly established Federal law in this case. Id. at But the majority held that it was not unreasonable for the state court to require an unambiguous request for counsel and concluded that Sessoms s request was ambiguous. Id. at We granted rehearing en banc. In an opinion authored by Judge B. Fletcher, the majority concluded that the state court s decision was an unreasonable application of clearly established federal law and reversed the district court s denial of habeas relief. Sessoms v. Runnels, 691 F.3d 1054, 1064 (9th Cir.2012) (en banc), cert. granted, judgment vacated sub nom. Grounds v. Sessoms, U.S., 133 S.Ct. 2886, 186 L.Ed.2d 930 (2013). The majority reasoned that Davis s requirement that a request for counsel be unambiguous applies only after a suspect has been informed of his Miranda rights, and thus granted a conditional writ of habeas corpus. Id. at The majority also noted that 5. The ineffective assistance of counsel claim arose from counsel s fail[ure] to investigate and present evidence that [Sessoms s] constitutional rights were violated by Sacramento Detectives Woods and Keller during his interrogation.

7 SESSOMS v. GROUNDS Cite as 776 F.3d 615 (9th Cir. 2015) 621 Sessoms clearly expresse[d] his desire for an attorney. Id. at The Supreme Court granted the state s petition for a writ of certiorari, vacated the decision, and remanded the case in light of Salinas v. Texas, U.S., 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013). Sessoms, 133 S.Ct Following supplemental briefing, the en banc panel heard oral argument. We now reconsider this case in light of Salinas, which suggests, contrary to the reasoning of the first en banc court, that Davis s requirement of an unambiguous invocation of a right to counsel applies to pre-miranda statements. Although Salinas points in that direction, it involved a noncustodial interrogation. Salinas, 133 S.Ct. at Indeed, Justice Alito s plurality opinion stressed that the noncustodial nature of the interview placed the petitioner s situation outside the scope of Miranda. Id. at This case, in contrast, involves a custodial interrogation in which the defendant should have been informed of his rights before he could knowingly waive them. See Miranda, 384 U.S. at , 86 S.Ct We nevertheless assume that the clear invocation requirement of Davis applies to Sessoms. With this requirement clearly in mind, we hold that, under the circumstances, a reasonable law enforcement officer would have understood Sessoms s statements as an unambiguous request for counsel, which should have cut off any further questioning under clear Supreme Court precedent. 6 ANALYSIS I. MIRANDA AND ITS PROGENY 6. Because we conclude that Sessoms is entitled to relief on his Miranda claim, we do not Our analysis begins with the landmark case of Miranda v. Arizona, which established certain safeguards that must be afforded to suspects, including the right to have counsel present during a custodial interrogation. The Supreme Court refined its analysis of the Miranda right to counsel in a series of cases including, as relevant here, Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (per curiam); Davis, 512 U.S. 452, 114 S.Ct. 2350; Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010); and, most recently, Salinas, 133 S.Ct [1] In Miranda, the Supreme Court established rules that law enforcement must follow to ensure certain basic and precious rights enshrined in our Constitution. 384 U.S. at 442, 86 S.Ct These rights include the Fifth Amendment s guarantee that [n]o person TTT shall be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V. One of the Court s primary concerns in Miranda was the temptation for law enforcement officers, operating with little or no supervision over their investigative actions, to overbear the will of a defendant in an isolated custodial interrogation setting. 384 U.S. at 461, 466, 86 S.Ct The Fifth Amendment privilege protect[s] persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. Id. at 467, 86 S.Ct The Court wrote that [a]n understanding of the nature and setting of [an] incustody interrogation is essential to its decisions in Miranda. Id. at 445, 86 S.Ct Stressing that the modern practice of in-custody interrogation is psychologically rather than physically oriented, id. at 448, 86 S.Ct. 1602, the Court explained address his ineffective assistance of counsel claim.

8 FEDERAL REPORTER, 3d SERIES that the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals. Id. at 455, 86 S.Ct The Court in Miranda presumed that interrogation in certain custodial circumstances is inherently coercive and TTT that statements made under those circumstances are inadmissible unless the suspect is specifically warned of his Miranda rights and freely decides to forgo those rights. Duckworth v. Eagan, 492 U.S. 195, 202, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989) (internal quotation marks omitted). To ensure that the use of such psychological tactics to exploit a suspect s vulnerabilities do not run afoul of the Fifth Amendment, Miranda set a clear brightline rule: Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorneytttt Id. at 444, 86 S.Ct If a suspect indicates in any manner and at any stage of the process that he wishes to consult with an attorney, all questioning must cease. Id. at , 86 S.Ct The Court presciently captured the importance of timing: a warning at the time of the interrogation is indispensable to overcome its pressures and to ensure that the individual knows he is free to exercise the privilege at that point at time. Id. at 469, 86 S.Ct The Court underscored the importance of giving the Miranda warnings at the outset of an interrogation to insure that what was proclaimed in the Constitution had not become but a form of words in the hands of government officials. Id. at 444, 86 S.Ct (internal citation and quotation marks omitted); see Alvarez v. Gomez, 185 F.3d 995, 997 (9th Cir.1999) ( Under Miranda, a person in custody must be informed before interrogation that he has a right to remain silent and to have a lawyer present. (emphasis added)). Fifteen years later, in Edwards v. Arizona, the Supreme Court reiterated the principle that the assertion of the right to counsel [is] a significant event and that once exercised by the accused, the interrogation must cease until an attorney is present. 451 U.S. at 485, 101 S.Ct (quoting Miranda, 384 U.S. at 474, 86 S.Ct. 1602). Edwards makes clear that Miranda s protections endure from the moment of invocation until the time the suspect is provided with counsel. The Court simply reconfirm[ed] that a suspect, having expressed his desire to deal with the police only through counsel, must not be subject to further interrogation by the authorities until counsel has been made available to him. Id. at , 86 S.Ct Of particular relevance here, the Edwards rule is designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights, Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990), and to ensure that officers will not take advantage of the mounting coercive pressures of prolonged police custody, Maryland v. Shatzer, 559 U.S. 98, 105, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010) (internal quotation marks omitted); see New York v. Quarles, 467 U.S. 649, 654, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). Taken together, [t]he purpose of the Miranda Edwards guarantee is to protect the suspect s desire to deal with the police only through counsel. McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (internal quotation marks omitted). The Court applied the principles of Miranda and Edwards just three years later in Smith. Eighteen-year-old Smith was taken into custody for interrogation, and the officers immediately gave him the Mi-

9 SESSOMS v. GROUNDS Cite as 776 F.3d 615 (9th Cir. 2015) 623 randa warnings. Smith, 469 U.S. at 92 93, 105 S.Ct In the course of advising Smith of his rights, the officers stated: You have a right to consult with a lawyer and to have a lawyer present with you when you re being questioned. Do you understand that? Id. at 93, 105 S.Ct Smith responded: Uh, yeah. I d like to do that. Id. (emphasis omitted). Rather than ceasing questioning, the officers pressed on: Q. Do you wish to talk to me at this time without a lawyer being present? A. Yeah and no, uh, I don t know what s what, really. Q. Well. You either have [to agree] to talk to me this time without a lawyer being present and if you do agree to talk with me without a lawyer being present you can stop at any time you want to. Q. All right. I ll talk to you then. Id. Smith proceeded to make incriminating statements. Id. The Court reasoned that the Illinois Supreme Court erred by looking to Smith s subsequent responses to continued police questioning namely, his statements that he didn t know what s what, really to inform its holding that Smith s initial requests for counsel were ambiguous. Id. at 97, 105 S.Ct Questioning should have ceased after the first request for counsel, which the officers ignored, because the statement Uh, yeah, I d like to do that was neither indecisive nor ambiguous. Id. The Court emphasized that the Edwards bright-line rule that all questioning must cease after an accused requests counsel intends to prevent the authorities through badger[ing] or overreaching explicit or subtle, deliberate or unintentional [from] otherwise wear[ing] down the accused and persuad[ing] him to incriminate himself notwithstanding his earlier request for counsel s assistance. Id. at 98, 105 S.Ct The Supreme Court revisited the scope of Miranda and Edwards in Davis. During a custodial interview with the Naval Investigative Service, Davis executed a written waiver of his rights and expressly agreed to speak to law enforcement. Davis, 512 U.S. at , 114 S.Ct Only after being questioned for ninety minutes did Davis utter the words [m]aybe I should talk to a lawyer. Id. at 455, 114 S.Ct Mirroring its teachings in Miranda and Edwards, the Court reaffirmed the fundamental principle that if a suspect requests counsel at any time during [a custodial] interview, he is not [to be] subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation. Id. at 458, 114 S.Ct (citing Edwards, 451 U.S. at , 101 S.Ct. 1880). The Court went on to clarify, however, that if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. Id. at 459, 114 S.Ct [T]he suspect must unambiguously request counsel. Id. The Court explained the reasoning behind this requirement as follows: A suspect who knowingly and voluntarily waives his right to counsel after having that right explained to him has indicated his willingness to deal with the police unassisted. Although Edwards provides an additional protection if a suspect subsequently requests an attorney, questioning must cease it is one that must be affirmatively invoked by the suspect.

10 FEDERAL REPORTER, 3d SERIES Id. at , 114 S.Ct (emphasis added). The statement, [m]aybe I should talk to a lawyer, was not an unambiguous or unequivocal request for counsel in light of Davis s prior waiver of that same right. Id. at 462, 114 S.Ct More recently, in Berghuis and Salinas, the Court considered the significance of silence in the Miranda context. In Berghuis, after being informed of his Miranda rights, the suspect refused to sign a waiver form and simply remained silent through almost three hours of interrogation before making an incriminating statement. See 560 U.S. at , 130 S.Ct In concluding that the suspect never invoked his right to silence, the Court echoed its holding in Davis that an invocation of the right to remain silent, like the right to counsel, must be unambiguous. Id. at , 130 S.Ct The Court wrote, not without significance, that it need not add marginally to Miranda s prophylactic protections by [t]reating an ambiguous TTT statement as an invocation of Miranda rights, because full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process. Id. at 382, 130 S.Ct (citations omitted). This conclusion mirrored the determination in Davis that the primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves and that, after having [those] right[s] explained to him, a suspect must invoke his rights affirmatively. 512 U.S. at , 114 S.Ct (emphasis added). Just last year, in Salinas, the Court reiterated that although no ritualistic formula is necessary in order to invoke the privilege, to simply stand[ ] mute, as Salinas did, was insufficient. 133 S.Ct. at 2178 (quoting Quinn v. United States, 349 U.S. 155, 164, 75 S.Ct. 668, 99 L.Ed. 964 (1955)). In a noncustodial, voluntary interview, Salinas answered most of the officer s questions, but when lobbed a linchpin question whether his shotgun would match the shells recovered at the scene he went silent. Id. Instead of answering, he [l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up. Id. at 2178 (alterations in original) (internal quotation marks omitted). After a few moments of silence, he started answering questions again. Id. Salinas had not unambiguously invoked his right to remain silent because [i]f the extended custodial silence in [Berghuis ] did not invoke the privilege, then surely the momentary silence in [Salinas ] did not do so either. Id. at In Salinas, the Court first noted that a witness must claim [the privilege against self-incrimination] at the time he relies on it. Id. at 2179 (internal quotation marks omitted). This ruling came against the backdrop of Edwards, Smith, Davis and Berghuis, which establish that, under the circumstances of the interrogation, the invocation must be clear and unambiguous. [2] The results in Berghuis and Salinas are no surprise mere silence does not qualify as an invocation of the right to remain silent. The discussion of the Fifth Amendment in Salinas is instructive, however, to the resolution of the right to counsel issue in this case. See Berghuis, 560 U.S. at 381, 130 S.Ct ( [T]here is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counseltttt ). In Salinas, the Court reaffirmed the importance of the Miranda warnings and discussed the two well-recognized exceptions to this rule. 133 S.Ct. at The first is that a witness need not take the stand and assert the privilege at his

11 SESSOMS v. GROUNDS Cite as 776 F.3d 615 (9th Cir. 2015) 625 own trial. Id. (citing Griffin v. California, 380 U.S. 609, , 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)). That exception was not at issue in Salinas and is not at issue here. See id. at Nor did the second exception the presence of governmental coercion [rendering] his forfeiture of the privilege involuntary apply to Salinas. Id. at Sessoms did not claim this exception in the state court proceedings. Accordingly, we do not rest our analysis on either exception to the Fifth Amendment privilege. We now consider Sessoms s claim in light of the teachings of Miranda and its progeny. Viewing the totality of the circumstances of the interrogation, we conclude that not only did Sessoms claim the privilege twice before being suitably warned, he did so unequivocally. II. THE STATE COURT S UNREASONABLE AP- PLICATION OF SUPREME COURT PRECE- DENT This case involves an unreasonable application of clearly established federal law, which we review under AEDPA s deferential standard of review. See 28 U.S.C. 2254(d); Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (holding that under AEDPA, a state-court decision involves an unreasonable application of this Court s precedent if the state court identifies the correct governing legal rule from this Court s cases but unreasonably applies it to the facts of the particular state prisoner s case. ). We take no issue with the California Court of Appeal s fact-finding or with its identification of the governing Supreme Court precedents, Miranda, Edwards, and Davis. 7. We cite circuit precedent to outline the standard at issue, but recognize that a circuit court may not consul[t] its own precedents, rather than those of th[e] [Supreme] Court, in assessing a habeas claim governed by 28 [3, 4] The court fell short, however, in its application of those precedents to the undisputed facts. It unreasonably applied those precedents by analyzing Sessoms s statements in isolation rather than collectively and in context to conclude that although [Sessoms] twice explicitly referred to an attorney, neither statement was an unequivocal or unambiguous request for counsel. Sessoms, 2004 WL 49720, at *3; see also Anderson v. Terhune, 516 F.3d 781, 791 (9th Cir.2008) (en banc) (setting out the framework under AEDPA, 28 U.S.C. 2254(d)(1), and holding that [t]he state court s decision to ignore an unambiguous declaration of the right to remain silent is an unreasonable application of Miranda ). 7 The court reasoned that the first statement There wouldn t be any possible way that I could have a TTT lawyer present while we do this? was a question that was legally indistinguishable from the equivocal remarks in Davis. It characterized the second statement give me a lawyer as a statement of his father s advice. It never considered the two statements together and in context. Our decision rests on clearly established Supreme Court precedent and requires no extension of the rationale of the invocation of counsel cases. See White v. Woodall, U.S., 134 S.Ct. 1697, 1706, 188 L.Ed.2d 698 (2014). We begin with the circumstances leading up to Sessoms s statements regarding counsel. See Smith, 469 U.S. at 98, 105 S.Ct. 490 ( Where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease. ). The interrogators in this case employed U.S.C White v. Woodall, U.S., 134 S.Ct. 1697, 1702 n. 2, 188 L.Ed.2d 698 (2014) (first alteration in original) (internal quotation marks omitted).

12 FEDERAL REPORTER, 3d SERIES many of the tactics against which Miranda warned. No warning came up front. The detectives plunged right into their questioning, which counsel for the state acknowledged at oral argument was a custodial interrogation. What was missing, nearly forty years after Miranda, was the now well-known Miranda warnings. Miranda recognized that overzealous police practices during custodial interrogation create the potential for compulsion in violation of the Fifth Amendment. Id. at , 86 S.Ct Indeed, [a]n individual [like Sessoms] swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion TTT cannot be otherwise than under compulsion to speak. Id. at 461, 86 S.Ct Davis reminded that the primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves. 512 U.S. at 460, 114 S.Ct And Salinas warned against the inherently compelling pressures of an unwarned custodial interrogation. 133 S.Ct. at 2180 (internal quotation marks omitted). Even without receiving any Miranda warning, Sessoms overcame these pressures and requested counsel unequivocally. The interrogation started out politely, with Sessoms saying that he was glad the detectives had a safe flight from California. In keeping with the pleasant small talk Sessoms made with the detectives when they entered the interrogation room, and before receiving any advice regarding counsel, Sessoms politely asked: There wouldn t be any possible way that I could have a a lawyer present while we do this? Unlike Davis, where the defendant asked, [m]aybe I should talk to a lawyer?, Sessoms was not asking whether he should speak to a lawyer. Like the defendant in United States v. Lee, 413 F.3d 622, 625 (7th Cir.2005), who asked, [c]an I have a lawyer? which the Seventh Circuit recognized as an unequivocal request for counsel Sessoms was deferentially asking whether he could have a lawyer. See United States v. Hunter, 708 F.3d 938, 948 (7th Cir.2013) (holding that [c]an you call my attorney? was an unequivocal request for counsel). The detectives understood that Sessoms was requesting counsel, as Woods s response to a subsequent question illustrates. After requesting counsel and before receiving the Miranda warnings, Sessoms paralleled the phrasing of his first request for counsel asking, in response to Woods s question about whether Sessoms wanted to talk, [w]ould it be a possible chance that I can call my dad TTT ask him? The officers understood that statement as an expression of Sessoms s desire to speak to his father and responded accordingly: Well no, because TTT [y]ou re an adult. There was no ambiguity in the first request for counsel Sessoms was expressing his desire to speak to an attorney any more than there was ambiguity in Sessoms s request to speak to his father. The answer to [t]here wouldn t be any possible way that I could have a TTT lawyer present while we do this? was easy yes, you have the right to remain silent and you have the right to a lawyer even if you can t afford one. But the detectives did not respond that they could not decide for him whether he should speak to a lawyer, they did not follow up about whether he was asking for a lawyer as the officers in Davis did, nor did they answer his question. The detectives instead pretended that Sessoms had never raised the issue of a lawyer in the first place. Ignoring the defendant s request flies in the face of clear Supreme Court precedent: No authority, and no logic, permits the interrogator to proceed TTT on his own

13 SESSOMS v. GROUNDS Cite as 776 F.3d 615 (9th Cir. 2015) 627 terms and as if the defendant had requested nothing, in the hope that the defendant might be induced to say something casting retrospective doubt on his initial statement that he wished to speak through an attorney or not at all. Smith, 469 U.S. at 99, 105 S.Ct. 490 (omission in original) (quotation marks and citation omitted). Under clearly established federal law, the answer to Sessoms s question about whether there could be a lawyer present during the interrogation should have been yes, followed by a reading of the Miranda rights, and an end to any questioning absent an affirmative waiver. See Edwards, 451 U.S. at 485, 101 S.Ct. 1880; see also Duckworth, 492 U.S. at 204, 109 S.Ct ( If the police cannot provide appointed counsel, Miranda requires only that the police not question a suspect unless he waives his right to counsel. ). Persisting in his attempts to speak with counsel before speaking to the officers, Sessoms repeated what he gleaned from his father: give me a lawyer. This was a very clear statement that Sessoms wanted counsel, yet the California Court of Appeal viewed this statement as a statement of his father s advice to him. Sessoms was not simply conveying his father s advice. Why would he? He was stating the fact that his father had told him to request counsel and that he was following through. That his father instructed him to ask for counsel does not dilute the clarity of Sessoms s request; it simply means that Sessoms s father gave him good advice, and he took it. The only reasonable interpretation of give me a lawyer is that Sessoms was asking for a lawyer. What more was Sessoms required to say? Was he obligated to repeat the obvious give me a lawyer another time? It is no more reasonable to demand grammatical precision from a suspect in custody than it is to strip the officers of all common sense and understanding. To the extent the first statement spawned any uncertainty and we believe that it did not reasonably do so taken together the two requests leave no doubt about what Sessoms wanted: a lawyer. In light of clear Supreme Court precedent, we have recognized the importance of evaluating a suspect s in-custody statements as a whole. See Hunter, 708 F.3d at (explaining that Smith confirms that courts should only consider prior context when determining whether a defendant unambiguously invoked his right to counsel and collecting cases in which the court looked to prior context when determining whether a defendant unambiguously invoked his right to counsel ). The importance of Smith and context was illustrated in Anderson v. Terhune, where the suspect said I don t even wanna talk about this no more ; Uh! I m through with this. I m through. I wanna be taken into custodytttt ; and, finally, I plead the [F]ifth. 516 F.3d at Citing to Supreme Court precedent in Smith, we held that the state court was unreasonable in concluding that the invocation was ambiguous in context because the context, in fact, ma[de] it clear that Anderson wanted to end the interrogation in all respects. Id. at 788. Viewed in the context of Sessoms s prior request that the detectives make counsel available to him during the interrogation, it was unreasonable to hold that Sessoms s second statement, give me a lawyer, was an ambiguous request for counsel. What else could this mean? I don t want an attorney? I m not sure I want an attorney? My dad wants an attorney? No, it means what it says in plain English: dad told me to ask you and I am give me an attorney.

14 FEDERAL REPORTER, 3d SERIES [5] As the Supreme Court has recognized, requests for counsel are to be understood as ordinary people would understand them. Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987) (emphasis added). The state court stretched the boundaries of how reasonable law enforcement officers would have understood Sessoms s statements in reaching its conclusion. Judge Murguia s dissent does the same. It recognizes that the Court of Appeal erred in its Davis analysis by considering Sessoms s statements in isolation. It then goes on to acknowledge that the majority may offer the most logical interpretation of what Sessoms was attempting to communicate by his statements. But then it jettisons the only logical interpretation of Sessoms s statements and embraces interpretations that blink reality Sessoms was merely expressing his father s opinion, agreeing with his father, or stating that he might want an attorney offering only that his statements contain just enough ambiguity to deny relief. Conjuring up ambiguity where there is none violates Davis. Construing the demand, give me a lawyer, as ambiguous strains credulity. Invoking the mantra of a fairminded jurist, a standard we embrace, does not mean that in evaluating the statements we toss overboard logic, common sense, and context. In contravention of Davis, by allowing the detectives to play games with Sessoms s clear language, the California Court of Appeal imposed the unreasonable grammatical precision of an Oxford don on a suspect subject to custodial interrogation. See 512 U.S. at 459, 114 S.Ct (quoting id. at 476, 114 S.Ct (Souter, J., concurring)). What happened after Sessoms made these two statements illustrates precisely why, once a lawyer is requested, questioning must stop. It is also a testament to why Miranda warnings are required at the outset of custodial interrogation. Interrogation does not begin once the officers get to the hard questions. Miranda warnings are required before any interrogation begins. Instead of giving Miranda warnings at the outset, or saying yes when Sessoms asked whether he could have a lawyer, Woods persisted with his questioning. He told Sessoms that they already knew what happened and that Sessoms s accomplices had confessed la[ying] it out from A to Z, thereby display[ing] an air of confidence in [Sessoms s] guilt and appearing only to be interest[ed] in confirming certain details. See Miranda, 384 U.S. at 450, 86 S.Ct Woods offered Sessoms a legal excuse[ ], see id. at , 86 S.Ct. 1602, and assured him that he believed that Sessoms did not participate in the stabbing. But then Woods immediately reversed course, telling Sessoms that he didn t really need his statement to make the case against him anyway, because Sessoms s accomplices had talked and hard evidence backed up their statements, thereby placing Sessoms in a psychological state where his story [was] but an elaboration of what the police purport[ed] to know already that he [was] guilty. Id. at 450, 86 S.Ct Eventually, the detectives, much as Miranda warns, overwhelmed Sessoms and persuaded him out of exercising his constitutional rights. Id. at 455, 86 S.Ct Giving Sessoms the Miranda warnings, in the midst of coordinated and continuing interrogation, was likely to mislead and depriv[e][him] of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. See Missouri v. Seibert, 542 U.S. 600, , 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (first alteration in original) (internal quotation marks omitted).

15 SESSOMS v. GROUNDS Cite as 776 F.3d 615 (9th Cir. 2015) 629 The detectives behavior confirms that like any reasonable law enforcement officers they understood that Sessoms was requesting counsel. Woods s response to Sessoms s requests for counsel was to explain that he and Keller would be up front and honest with Sessoms and would not play any switch games with him. Woods backed up this promise with a tape recorder he had with him, which he said provided proof that we ain t playing no switch games. It was not until after the detectives explained just how forthright they were being and reiterated that the existence of a recording would ensure that they can t play no switch games that they acknowledged Sessoms s requests for counsel, stating Uh, I want to back up to your question about an attorney and explaining that first, they would advise Sessoms why they were interviewing him; then, they would advise Sessoms of his rights; and after all that, they would leave it to Sessoms to decide if you want the attorney or not. After a bit more small talk, Woods drove the point home: [I]f you said you didn t want to make any statement without an attorney, we re not really going to be able to talk to you and get your version of it. Uh, most all attorneys in fact, all attorneys will will sometimes or usually advise you not to make a statement. But and and we don t need to have your statement to make this case because we ve already got two and a half other complete statements. And we know what happenedtttt Why would Woods need to talk Sessoms out of an attorney if he hadn t understood that Sessoms wanted an attorney? In determining that Sessoms s statements are unlike the wavering statement in Davis, we hew to the teachings of Salinas that invocation of Miranda rights must be express. See 133 S.Ct. at There was no ambiguity regarding what Sessoms wanted: a lawyer. It was not until Woods convinced Sessoms that a lawyer would simply get in the way that Sessoms relented and gave Woods what he wanted: incriminating statements made without the benefit of counsel. Context and circumstances matter. Under Davis and Smith, the Court of Appeal was bound to analyze whether a reasonable officer viewing the situation in light of all of the circumstances leading up to the statements would have understood Sessoms s statements to be a request for counsel. Rather than following that procedure, the California Court of Appeal analyzed each statement separately, did not explore the context in which the statements were made, and, unsurprisingly, landed on an unreasonable application of clearly established federal law. See Sessoms, 2004 WL 49720, at *3. The Court of Appeal unreasonably applied clearly established precedent under Miranda, Edwards, Smith, and Davis when it held that Sessoms s request for counsel was ambiguous. III. THE CONSTITUTIONAL ERROR WAS NOT HARMLESS [6 8] Harmless error review applies to the introduction of Sessoms s illegally obtained confession. Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Reversal is required if the constitutional error had substantial and injurious effect or influence in determining the jury s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (internal quotation marks and citation omitted). We conduct this inquiry de novo. If, reviewing the facts as a whole, we are able to determine with fair assurance that the judgment was not substantially swayed by the error, we may conclude that the error